Who are we more afraid of: enemy combatants or federal courts?

The Enemy Within

Who are we more afraid of: enemy combatants or federal courts?

The Supreme Court's decision Thursday in Boumediene v. Bush and Al Odah v. United States is—as all the big enemy-combatant cases have been—both enormously important and relatively insignificant. This is, after all, the third stinging setback and blistering rebuke the court has handed the Bush administration with respect to prisoner rights at Guantanamo. Yet you may have noticed that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ça change for the detainees there. At his pretrial hearing in April, one of the detainees "lucky" enough to actually face a trial, Salim Hamdan, pointed out to the presiding judge that winning his own appeal at the Supreme Court in 2006 got him precisely nothing.

"You won. Your name is all over the law books," the military judge, Navy Capt. Keith Allred, told Hamdan that day, in an effort to persuade him that the system isn't rigged. "But the government changed the law to its advantage," Hamdan replied. Certainly the detainees at Guantanamo who don't face charges were granted some substantive constitutional rights today (although whether Hamdan himself will benefit remains to be seen). But it's a mistake to see this ruling for more than it is.

The Supreme Court, by a 5-4 margin, determined that neither the president, nor the president plus Congress, could strip detainees at Guantanamo of the ancient right to habeas corpus via the 2006 Military Commissions Act (PDF). This is pretty legal and technical, and the concrete ramifications are still baffling to just about everyone. Judging by the tone of Justice Antonin Scalia's dissent, however, you'd think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia. "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed," Scalia wrote. He concluded his dissent with this warning: "The Nation will live to regret what the Court has done today."

Scalia points to the 30 detainees released from Guantanamo—by an order of the Bush administration, not a court, it should be noted—who have allegedly "returned to the battlefield." One detonated a suicide bomb in Iraq in May. Scalia notes that this "return to the kill" happened even after "the military had concluded they were not enemy combatants" (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives. For this proposition, Scalia cites the trial of Omar Abdel Rahman in federal court in 1995, in which the names of 200 unindicted conspirators were leaked to Osama Bin Laden. Just to recap, then, everyone at Guantanamo is guilty, and the mere act of trying them will result in more American deaths. This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can't reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed.

The claim that the majority handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells is absurd on its face. As Justice Kennedy is careful to point out in his majority opinion, the court is not ordering the release of any detainees; it is restoring their fundamental right to a habeas proceeding before a neutral fact-finder. The court did not get to the question of whether the president has authority to detain these petitioners. Nor did it actually grant anyone a writ. The majority did not strike down the MCA or find the military trials the Bush administration established to be unconstitutional. The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don't substitute. Chief Justice John Roberts may insist that these tribunals represent everything a prisoner could ever wish for in the way of due process rights. But Justice Kennedy points out that the detainees' lack of a real lawyer and their inability to rebut the charges against them make for a process that is, by definition, "closed and accusatorial" and thus open to "considerable risk of error." (Not to mention that if a CSRT finds that you're NOT an enemy combatant, they can just order a do-over!) Such error may result in a lifetime of detention. The majority isn't persuaded the risk is worth it. Wrote Kennedy: "Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant too ignore."

And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of ... what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may—somewhere far down the line, and at the moment entirely hypothetically—result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.

Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials. And it's precisely that sense of time passing without consequence that so infuriates the majority. Justices Kennedy, Breyer, and Souter each observe in their opinions today that the passage of so many years while detainees waited and watched was preposterous. This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years. That's how long it's been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy. Responding to the dissenters' fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn't even started, and "the costs of delay can no longer be borne by those who are held in custody." As David Barron points out at "Convictions," the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that—for all the change on the ground at Guantanamo—might as well have been losses are not exactly a ringing endorsement of the American legal system.

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Justice Scalia, meanwhile, is banking on someday cashing in the "I told you so" chit he wrote for himself today. In the event that one of the prisoners who has suffered years of abuse and mistreatment at Guantanamo is someday actually released following a federal habeas proceeding and blows something up, Scalia wants to be able to point at Justice Kennedy as the man who let him go. Or if in the course of a someday trial, a piece of evidence is leaked that somehow strengthens a terrorist group, he can blame Kennedy for his blind faith in the federal courts. The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo—among them people who were grabbed as teens and others who claim actual innocence—go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear. But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench—with decades of judicial experience and the Constitution to light their way—might now do what they are trained to do: hear cases.

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